Liberty Safeguards 3A: Human Rights Framework 3B: The Bournewood Gap 3C: NZ - Implications of the Bournewood Gap 3D: Reform options - proportionate response Recommendations for liberty safeguards

3A: THE HUMAN RIGHTS FRAMEWORK

Liberty and the right not to be arbitrarily detained

  1. Liberty and the right to be free from arbitrary detention is guaranteed in both New Zealand law (under legislation and the common law), as well as in the main international human rights instruments to which New Zealand is a party.395 Sections 21–23 of the NZBORA, art 9 of the ICCPR, and art 14 of the CRPD express the right to liberty or the right to not be arbitrarily detained (sometimes referred to as habeas corpus rights) in a very similar fashion.396

  2. 3.11 Section 22 of the NZBORA plainly says that “Everyone has the right not to be arbitrarily arrested or detained”. The purpose of this right is to ensure that no person is subject to the constraints and ill effects that are associated with detention other than in accordance with the law.397 There are several accompanying rights in the NZBORA,398 including the right to have the validity of one’s detention determined without delay by way of habeas corpus, and the right to immediate release if one’s detention is unlawful.399 These rights under section 3 of the NZBORA must be respected by anyone exercising a “public function”, and would include District Health Boards (DHBs) as well as private rest homes and mental health facilities that receive public funding.400

395 The main international human rights instruments to which New Zealand is a party that are relevant to mental capacity law are set out in Chapter 2. These include the ICCPR, the ICESCR and the CRPD.

396 The New Zealand Bill of Rights Act 1990 (NZBORA) expressly affirms New Zealand’s commitment to the ICCPR.

397 A Butler, P Butler New Zealand Bill of Rights Act: A Commentary (LexisNexis, Wellington, 2015) at 1088.

398 The following rights in the NZBORA are also relevant to placement of people into care or detention and their deprivation of liberty: s 11 the right to refuse to undergo medical treatment; s 17 freedom of association; s 18 freedom of movement and residence; s 19 - freedom from discrimination; s 23 associated procedural rights. For a review of applicable rights under the MH(CAT) Act, see K Gledhill, “A “Rights” Audit of the Mental Health Act”, in Dawson and Gledhill, above n 92 at 285.

399 NZBORA, s 23(1)(c). The NZBORA rights are subject to reasonable and justifiable limitations, including those prescribed by law: NZBORA, s 5. Whenever legislation can be given a meaning that is consistent with the rights and freedoms contained in the NZBORA, that meaning is to be preferred: NZBORA, s 6.

400 NZBORA s 3(a) confirms the Rights in the Act apply only to acts done by the State, or 3(b) “by any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body”. The Crown Entities Act 2004, s 7 includes DHBs in its schedule of public entities. Added to this, Right 4 of the HDC Code requires health and disability services to be of an “appropriate standard of care”, in a manner appropriate to a person’s needs, that optimises their quality of life and with cooperation between providers.

  1. 3.12 Article 5(1) of the ECHR is similar to the rights expressed in the NZBORA. It is also similar to art 14 of the CRPD,401 which both New Zealand and the UK have ratified.402 Therefore, the case law from the ECtHR will be influential in New Zealand. Article 14 of the CRPD provides:
Article 14 – Liberty and security of the person
  1. States Parties shall ensure that persons with disabilities, on an equal basis with others:

    (a) Enjoy the right to liberty and security of person;

    (b) Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.

  2. States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of this Convention, including by provision of reasonable accommodation.403
  1. Article 14 of the CRPD is specifically concerned with liberty rights. In addition, art 19 provides the right to live independently and be included in the community. The UN Committee has identified the detention of people with disabilities without their consent (or with the consent of a substitute decision-maker) as a form of “arbitrary deprivation of liberty” that violates articles 12 and 14 of the CRPD, requiring State parties to refrain from such practices and to establish a mechanism to review existing cases.404

  2. A prevailing theme in all of these human rights instruments is that any limit on liberty should be the least restrictive to achieve its purpose.405 Statutes and common law rights that protect liberty should therefore be read with these rights in mind.

  3. Statutes can also authorise deprivations of liberty of people with impaired capacity in the health and disability setting in situations where the detention is “prescribed by law”. The MH(CAT) Act for example, provides for involuntary treatment and detention of some people with a mental disorder, and the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (IDCCR Act) also authorises detention of people with intellectual disability who commit criminal offences.406 The significance of these laws is that they have accompanying procedural safeguards to protect the interests of people subject to them. However, there are many people with impaired capacity who may be detained in similar health and disability settings – for example, “informal” patients on psychiatric wards – who are not subject to those laws and therefore do not have the benefit of those procedural safeguards.

401 Article 5(1)(e) of the European Convention specifically allows detention for those of “unsound mind”, provided it is lawful and there is a necessity test based on adequate evidence of mental disorder: Winterwerp v The Netherlands (1979) 2 EHRR 387. These same criteria are not present in Article 14(1)(b) of the CRPD so to this extent art 5(1)(e) is inconsistent with art 14 of the CRPD: Gledhill, above n 398 at 292. See also P Fennel and U Khaliq, “Conflicting or complementary obligations? The UN Disability Rights Convention on Human Rights and English law” (2011) Eur Hum Rights Rev.

402 New Zealand also has in common with the UK that it is a party to both the ICCPR, as expressly recognised in the New Zealand Bill of Rights Act 1990 (NZBORA), and the CRPD. See discussion on applicable international human rights treatises in Chapter 2 Supported Decision-making.

403 The concept of “reasonable accommodation” means that modifications are to be made to achieve equal protection unless they impose a disproportionate burden. K Gledhill “The Filling of the Bournewood gap” in McSherry and Freckleton, above n 102 at 115.

404 UN Committee, above n 242 at [40]. In this respect, the UN Committee is particularly concerned with involuntary detention in psychiatric institutions and does not appear to contemplate detention of people with impaired capacity living in supported living arrangements in the community.

405 The least restrictive intervention is also one of the primary objectives of the PPPR Act, s 8(a).

406 See Chapter 1B for an overview of the MH(CAT) Act and the IDCCR Act. A summary of the MH(CAT) Act safeguards are set out below.

Common law – habeas corpus and false imprisonment
  1. The right to review the lawfulness of any deprivation of liberty has long been recognised under the common law.407 Both an application for a writ of habeas corpus and the action for false imprisonment allow people to test the lawfulness of their confinement and they provide remedies when a person is unlawfully deprived of their liberty.

  2. Habeas corpus has traditionally been available to secure the release of a person confined by any person or statutory body. Recently, habeas corpus applications in the High Court have been based on allegations that people subject to care and welfare orders under the PPPR Act have been unlawfully deprived of their liberty by their appointed welfare guardian.408 While the Family Court, not the High Court, is the proper forum for these cases, they may indicate that there is not an adequate process under the PPPR Act itself to identify and monitor such deprivations of liberty.409

  3. The habeas corpus procedure is designed for clear cases of unlawful detention and is less suitable for cases requiring detailed legal or factual analysis due to the swiftness of its procedure.410 In these cases, proceedings in false imprisonment, or an application for judicial review (where those involved are performing a public function) would be more suitable.411 Habeas corpus is also not available where the detained person has appeal rights that have not been exhausted.412

  4. The tort of false imprisonment, a civil wrong, is committed when one person is detained or imprisoned by another person acting without lawful justification.413 There must be total and intentional restraint by physical means, or by other means (such as coercion, threats, or claims of authority) that cause the person to submit to deprivation of their liberty.414

407 Chief Executive of the Department of Labour v Yadegary [2001] 2 NZLR 495 (CA) at [44]. New Zealand Courts have recognised the presumption in law in favour of liberty - in favorem libertatis. In the Supreme Court decision: Zaoui v Attorney General [2005] 1 NZLR 577 at 650 [52] “And it is of prime importance that any powers of detention be approached in light of the fundamental right, long recognised under the common law, of liberty for all persons subject only to such limits as are imposed by law.”

408 E v E, above n 63. See also JDEB & ors v JAB & RHB and MAB, above n 63, following an unsuccessful writ of habeas corpus in the High Court.

409 There has been a successful habeas corpus case in Victoria, Australia. In Antunovic v Dawson [2010] VSC 377, it was held that Mrs Antunovic had been unlawfully restrained and the Court ordered her release, even though she had not been subject to any physical restraint. The Court accepted her evidence that she felt that she was unable to leave the premises at which she was residing without the permission of her psychiatrist.

410 N and N v CEO of CMDHB [2016] NZHC 277, Thomas J at [18].

411 Habeas Corpus Act 2001, s 14(1A)(b). Manuel v Superintendent Hawkes Bay Prison [2005] 1 NZLR 16 (CA).

412 E v E, above n 63 at [48] and T v Regional Intellectual Care Agency [2007] NZCA 208.

413 S Todd and J Hughes The Law of Torts in New Zealand (5th ed, Brookers/Thomson Reuters, Wellington, 2009) Chapter 4 Trespass to person.

414 JG Fleming The Law of Torts (9th ed, LBC Information Services North Ryde NSW, 1998) at 33–37.

  1. A person falsely imprisoned can seek a declaration that their detention in unlawful, or seek damages from the person or body responsible, and such proceedings can be brought against private individuals, not only against public bodies.415 In ZH v Commissioner of Police for the Metropolis,416 the English Court of Appeal upheld a decision to award damages for psychological trauma where the police – without lawful authority – forcibly removed a young man with severe autism and learning disabilities from a swimming pool and subsequently physically restrained him and detained him in a police van. The police did so without consulting his carers, informing themselves of the nature of his disabilities, or considering less restrictive options.417

  2. However, in the Bournewood case, discussed below, the ECtHR rejected the idea that the common law actions of habeas corpus and false imprisonment – that have to be initiated by or on behalf of a disabled person – provided adequate remedies (or an adequate review process) for deprivations of liberty under the ECHR. A more accessible review process was required.
Arbitrary detention – legal principles
  1. A common set of legal principles concerning the meaning of “arbitrary detention” can be drawn from cases interpreting these liberty rights in both domestic and international courts and tribunals. In particular, extensive case law on the interpretation of Article 5(1) of the ECHR has been developed by the ECtHR. This establishes very similar principles to those expounded by the New Zealand courts interpreting the NZBORA.418

  2. In summary, the key elements of the right not to be arbitrarily detained are:
  • a distinction is made between mere “restrictions” on liberty and “deprivations” of liberty that reach the threshold of “detention”: the difference between the two is one of intensity;419
  • any detention must clearly be authorised or justified by law;420 the concept of arbitrariness is broader than unlawfulness;421 and “arbitrary” has been defined as “inappropriate, unpredictable or disproportionate”;422
  • although lawful at the outset the detention may become unreasonable and arbitrary by virtue of indefinite or prolonged duration or disproportionate consequences;423
  • the aim is to prevent arbitrary detention occurring, so legal safeguards against deprivation of liberty should operate prospectively, not retrospectively;424
  • laws authorising detention must be written so as to provide meaningful standards by which a person can know whether their detention is lawful; and there must be speedy access to a court or tribunal (or other suitable process) that is sufficiently independent of the organisation responsible for the person's detention and is capable of directing the person's release.425
  1. A key question is, therefore, whether New Zealand law currently meets these standards where the person detained lacks capacity. Before considering that question further, it is appropriate to consider the case law under the MCA, developed in light of the European Convention, and the steps taken in England to provide procedural safeguards for detained people who lack capacity, under the DoLS regime. As a result of these developments under the MCA, there is much greater clarity regarding situations in which there is a deprivation of liberty, and the kind of legal safeguards required.

415 Law Society Identifying a Deprivation of Liberty: a practical guide (2015) http://www.lawsociety.org.uk at 23.

416 [2012] EWHC 604 (Admin), upheld in the English Court of Appeal, [2013] EWCA Civ 69.

417 The Court awarded £28,000 in damages and held that the provisions of the MCA and use of restraint under s 6, are specifically designed to provide specified express pre-conditions for those dealing with people who lack capacity. Section 6 of the MCA imposes two important limitations on the acts which can be carried out with protection from liability under s 5. Firstly, the person using it must reasonably believe that it is necessary to do the act in order to prevent harm to the person lacking capacity; and secondly, the restraint used must be a proportionate response both to the likelihood of a person suffering harm and the seriousness of the harm.

418 Butler and Butler, above n 397 at 1088.

419 Austin v United Kingdom (2012) 55 EHRR 14 (ECtHR,GC) at [57]. The approach under the NZBORA is similar to that adopted by the ECtHR, which considers a range of factors relating to the alleged detention, and then evaluates whether there has been a mere “restriction” on liberty or a “deprivation” that reaches the threshold of “detention”: Butler and Butler, above n 397 at 1091.

420 In a case involving interpretation of the Mental Health Act 1969, the High Court held that the Act must be interpreted in accordance with s 22 NZBORA; when a person is detained otherwise than in accordance with the law or principles which the law regards as appropriate for regulating a discretion, that detention will be deemed arbitrary: Re M [1992] NZLR 29 Gallen J.

421 Manga v Attorney-General [2002] NZLR 65 at[44], Hammond J at [40].

422 Zaoui above n 407 at [100].

423 Zaoui above n 407 at [175].

424 In this sense, the law is prophylactic: Butler and Butler, above n 397 at 1088.

425 European Convention on Human Rights, art 5(4); New Zealand Bill of Rights Act 1990, s 23(1)(c).

  © 2019 Alison Douglass